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tv   Brookings Institution on Criminal Justice System Use of Fines and Fees  CSPAN  March 18, 2019 1:27pm-2:31pm EDT

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what it means to be american. >> our american institution is one of the most unique in the world where students have the power vested in them to hold the government accountable. the greatest thing about the issue of corruption in united states -- the people are willing to recognize the nation's falls. -- falls. laws.l >> the top 20 entries will air on c-span in april. you can watch every winning documentary online at >> up next on c-span, a conversation from the brookings institution about the criminal of finesystem's use
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and bail on -- as a use of revenue. >> welcome. i am bob rubin. on behalf of my colleagues at the hamilton project, welcome to today's forum. it is the economics of bail, fines, and fees in the criminal justice system. years afterut two the beginning of the hamilton project, we had our first form of criminal justice reform. we came to the topic because we have been focused on urban property. the poverty that has replicated itself the generations. there was aized criminal justice component to this. that led us to the recognition that the criminal justice system was greatly exacerbating the
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poverty problems we are focusing on. it also led us to recognize the in armistice function of our criminal justice system. the numbers of people incarcerated, about six times the average of the developed countries. the sentences that are too long. parole and probation is too rigid. -- we give to praise -- begin to people in prison -- we give people in prison. what struck me at the first form was that people come from all over the country. come, asked why they had they said this is the first opportunity they had to discuss the subjects with a d.c. platform. that has changed.
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in that time, this was very early. me, this is said to the first time they have been involved and focused on these issues through an economic lens, which is very we've had several meetings on this topic since. there's been a lot of progress. but a vast amount remains to be done. in i went to to san quentin. 2016, i've been invited to give a talk, and the experience crystallized for me a comment that one of the people in prison made to me, and a registered and stayed with me ever since. which is none of us should be judged by the worst thing we've ever done. two of the people i have stayed in touch with. it was with lunch with one of
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them two or three weeks ago and he told me how inadequate the preparation had been both while he was in prison and how inadequate support was now for reentering the mainstream society and mainstream economy. although he himself was actually doing quite well, extraordinary impressive individual. the context of criminal justice reform today to mention a moment ago on bail, fines and fees including fees of restitution. there are enormous inequities in our criminal justice system. with respect to focus or focusing on bail for the moment, if you're accused and you can afford to post bail, you don't go to jail. if you're accused and you don't have the financial resources to provide bail, you do go to jail. at any given day, it's been estimated that are half a million people in jail because of their inability to provide bail.
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going to jail is not only itself obviously a difficult experience, but it has another consequence. some number of those who go to jail plead guilty even though their innocent because they get time served or probation, and the problem there is they have a criminal record and that been adversely affects as a seek employment subsequent to that experience. the cost of them is enormous but the cost to our society and our economy are also very great. we are also going to focus on fines and fees including restitution. these fees and the debt that is incurred follow people from the time they leave prison for the rest of their lives until they can afford to pay them and very often for these people paying off those, the debt incurred in the criminal justice system is
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very difficult. it limits job prospects and it undermines their effort to get back into our society. two people i had lunch -- not lunch, lunch with one and met with the other. two people i met and are now out on parole from san quintin have respectively $8000, $20,000 of debt. for those people in that situation that's a lot of money. it's been estimated the cumulative debt incurred to the criminal justice system is somewhere around $124 billion as of the fiscal year 2017. another topic topic we are looking at today is the use of fees and fines created by the criminal justice system as a budgetary measure, which then distorts the conduct of the criminal justice process. to discuss all of this, we're deeply appreciative of having with this highly experienced, deeply knowledgeable participants in panels and authors of our papers.
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in keeping with the practices of hamilton project i will not introduce them at this point. they will be addressed by our moderators. let me just say there is a remarkable group of people where very fortunate to have them with us. our first panel will be moderated by ryan nunn, the policy director of the hamilton project and an economics studies fellow at the brookings institute. he will be discussing policy options to reform the use of fees, fines and forfeitures. and then we'll have the case for reforming our own limiting cash bail moderated by maya wiley, a legal analyst for msnbc. and henry cohen, professor of urban policy and management and senior vice president of social justice at the new school. that's a lot of titles for one person but we're glad to have her. let me say before i conclude
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that we are very fortunate of -- at the hamilton project. i mentioned brian already who is deeply thoughtful and knowledgeable, widely respected, outstanding director of the hamilton project, jay shamble, and effective managing director kristen mcintosh. we have remarkable staff without whose work we could not accomplish any of what we do. with that return the panel, the forum over to the first panel. thank you all. [applause] ryan: good morning. i'm ryan nunn, policy director
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for the hamilton project and i'll be your moderator for this panel, reviews the fines of -- fines, fees and forfeitures. i'm excited to talk to the panel about all these issues pick you can see their bio, full bios in the agenda but david a quick title for each of them. directly to my left, kristen clarke is president and its -- and executive director of the lawyers' committee for civil rights under law. next we have jeremy travis as executive vice president of criminal justice at arnold ventures. next we have danielle allen whose james bryant conant university professor and director of the edmund soffer center for ethics at harvard university. next of her we have beth colburn, who is professor of law at ucla and author of one of the proposals will be discussing today. finally we have michael makowsky who is associate professor of economics at clemson university and author of a second proposal that we will be discussing today. i'll just say a few quick words about the scope for this discussion on this panel.
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we're here to talk about find -- fines, fees and forfeitures in part because our criminal justice system is making more and more use of the overtime. where once monetary sanctions were really a matter of fines, specifically designed to deter crime and to punish it, now we see a much larger role for fees and forfeitures as well. more than half the people in prison have incurred fees with small fractions subject to fines and restitution in addition. we see local jurisdictions raising revenue from the sanctions are the -- sanctions. the top 5% offset about half of the criminal justice expenditures with these revenues. those patterns and plenty of other interesting evidence you can find in the hamilton project's nine facts about monetary sanctions which if you haven't already grabbed you can get outside. so what we want to talk about is the set of reform options that this evidence-based prompts.
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i think that's driven by this growing research literature that documents and the cost of people with criminal records but also documents the extent to which a system is not always effective at achieving its own goals. researchers have learned how law enforcement behavior can be distorted by the incentive to acquire and retain criminal justice revenues from sanctions and we'll talk about what can be done to simultaneously achieve objectives like public safety while minimizing harm to people with criminal records. so with that we will get started in a moment. i want to remind you that we have a q&a process that so different here so we will be passing around notecards of which you can write any question you have. those will be passed up to me and we will have a q&a at the end. but first what i'd like to do is turn to one of our authors, to michael makowsky, just asking to describe the challenge that he's addressing in this proposal. so your focus on real and -- realigning the incentives of law enforcement.
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can you tell us about the problems that motivated you to write this? >> let's set a little public finance context. for local governments, raising debt is hard, raising taxes is even harder. if they do manage to raise taxes, someone will probably lose an election or your tax base may just decide to live somewhere else. so facing those constraints what a lot of local governments have elected to do is transform their local law enforcement into and -- an effectively regressive tax system. this strategy has spread across the country. it's becoming more and more common. i think for a lot of us when we put the image in our head of revenue-driven law enforcement, we think the media speed trap , sort of nuisances parking , tickets. but if you look at the growing body of literature, professor colgan is part of this, these are not nuisance fines and fees.
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these are often financial ly crippling. they are sizable enough people are being incarcerated for failure to remit payment. and furthermore it's extended beyond citations. we're seeing correlations between criminal arrests that can lead to property seizure. so now we're talking about a system that is both financially harmful but is appling this criminal stigma to someone for the rest of their life. and furthermore it's part of the system we're seeing a lot of systematic bias. when we see a correlation , weeen increases in arrests are almost exclusively seeing that for a minority arrestees , no more general correlation for white arrest rates. statistics can seem a little anodyne and maybe that's sometimes why this can fly below the radar, but the report that the department of justice issued
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on the municipality of ferguson, missouri, in the wake of the tragedy presented such a start image. just irrefutable evidence of a municipality where the criminal justice system had become systematically biased against low income african-americans as a fiscal strategy. when you combine that fiscal strategy with law enforcement creating this incredible amount of collateral damage, in pursuit from a public finance point of view which would seem like a relatively modest amount of revenue, it becomes a destructive enterprise. so what i'm proposing is essentially two strategies in pursuit of one goal, which is revenue neutral law enforcement. and it does that by two things. one, it's subtle, and that's the pooling of criminal justice revenues across all municipalities within the state,
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and remitting those back to the state to then be distributed on a population basis back. i know it might seem kind of odd to suggest having local agencies give money to the states only to have it sent right back without any change in the quantity, but that remittance dilutes the incentive from any one arrest. so when that moment of discretion that the officer has, that arrest isn't going to actually put any more money in his or her budget, in his or her overtime allotment. it is not going to keep their boss any happier. it's been diluted out and then it will come back. but we also know there's a lot of political games that can be played. politicians are very clever in terms of moving money around, which is why my second proposal is more ambitious. and that is the establishment of
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a public safety rebate with a direct revenue from arrest so the property seized would be pooled in the state and then rebated back at the end of the fiscal year to low income constituents using the s.n.a.p. program rubric. it would be minimal overhead, but it's returning this money that has already served its purpose. it served its purpose as a deterrent, but now it's never going to actually enter a budget. so when members of the community receive this rebate every year, it's informing them what law enforcement is doing in their community, but it's also -- it's establishing a commitment and making a promise that we are using these penalties because we don't want to fall back on incarceration. we want them to be a deterrent but once they serve this purpose , we're giving the back to you
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because we are here to serve and protect you. we are not here to take from you. thank you. >> beth, like to turn to you now and ask you to kind of tell us more about the problems you're dressing and your proposal. you focus more on the individual side of monetary sanctions. >> absolutely. before i get going i want to talk about the scope and type of sanctions were talking about outside of the forfeiture context. there are roughly speaking about four general categories of economic sanctions that are widely used in the united states. the statutory fine is when we think of most often, but there are also fees, administrative fees charged for things like if you have a jury trial, you have potentially have a fee. you might have to pay for the costs of your pretrial or postconviction incarceration. one that often surprises people. you may have to pay for the cost of the public defender you're only qualified for for because your indigent. these fees can stack up.
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we also have in many places what are called surcharges additional , items that operate as fines on top of fines. they are often targeted for particular pots of money, so you might have a driving violations the result in the ticket and your surcharge might be used in some states to pay for the public parks fund or in arizona there is a clean elections campaign fund. it may have nothing at all to do with law enforcement, so as we were just hearing about this been used as alternative tax mechanism, this was a particularly obvious moment when that happens. we also have risk restitution, which at least in theory is supposed to be paid to victims, although we haven't done a take -- a particularly good job of ensuring that actually happens, which i happy to talk to and if am people are interested. there are all these different kinds of sanctions in play, in many cases, and this happens from adult felony court all the
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way down the traffic court, although restitution is less likely in the context. also in juvenile court. one of the things that happens is if you don't have the ability to pay immediately, we keep tacking on more fees, more collections cost, interest and the like so that debt just continues to accrue. and if you miss a payment or pay then we have what , are called poverty penalties that can be tacked on top. this may be additional economic sanctions but it also might be an extension of your term of probation or parole. it might include incarceration in some places. in many jurisdictions it involves an extension of your lost of right to vote. i should note most of those things are argument -- arguably unconstitutional that they are widespread around the country. how many people are in this position of not being able to pay? just rough evidence we have about the economy and we've
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heard a lot of this a target of -- a lot of this is targeted at low income minority communities, just as a general matter 2017 supplemental poverty measure that almost 14% of americans are living in poverty. and as a result, a little more than a quarter of adults are not able to make -- meet the monthly needs. they are having to skip things like rent or food, basic necessities. if you look at minimum wage, in most states with minimum wage even if adjusted for the earned income tax credit would leave a family of three below the federal poverty line, or just above the federal poverty line. as a result there are a lot of people that just simply are not in a position to make a payment it suddenly they have these economic sanctions added to the monthly bill. when you add on to that the 9 million households in the united states that are un-banked, they have no access to standard bank
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accounts, no savings to draw from, that means if they have to make payments they might be going to more expensive options like payday loans. this all has serious implications for people who are unable to pay, and what we know is people with criminal histories, people especially who are coming out of incarceration or reentering the community are likely a very limited success finding employment. having a felony conviction can hamper that. there may be actual restrictions on employment and business licensing that can attach to certain convictions. they also might be triggered by an inability to pay. as a result we have people, particularly people in communes of color who are returning to spaces what are fewer jobs available in the first instance, are already having difficulty making payments work. so there's a number of things that an happy to talk about in q&a around what is even beating
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-- even meeting the goals of punishment. does it deter or not? spoiler alert, it pushes people into crime. it has problems with system legitimacy. there are fried of issues that problems that this creates. and so my proposal, which i actually think -- i should say is not a panacea to the large-scale problems were talking about. it doesn't fix policing, doesn't fix the racial injustices and the criminal justice system. it makes a small conservation to improving fairness in terms of the use of economic sanctions where we use them. that's to require an ability to pay calculation. and i'm happy to discuss later what the details of that might look like but as a rough overview you really need to have the criteria, the objective both in terms of the person's income and expenses.
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one of the things we see in places where there isn't objectives, information used to determine ability to pay is about it can turn a a things like what shoes you wore to court. so it doesn't really give us an idea of what people are able to pay. i happy to talk about the day am fines model for this. this is a system used in latin america that is a particular form of means adjustment will look both at the ability to pay and the seriousness of the expense to come up with a penalty imposed. and it's important to understand that they're going to be some people who cannot pay anything. we have to be serious about talking about non-incarcerated, non-economic responses to what are currently handled as criminal justice problems. >> i would like to turn to danielle now. monetary sanctions are not new in the u.s. riminal justice system. what have we learned from the history and particularly in terms of how sanctions matter for civil rights? >> thank you. it is a pleasure to be good historian in the house today and give us a chance to think about the past.
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i am going to put a policy reform idea on the table, from our own history, probably has occurred to anybody but the american revolution. it was indeed a policy response to exactly this kind of problem. let me just walk you through the history of little bit to remind you because it connects to the issue of legitimacy that both the previous speakers raised. here is the text of commission for a customs commissioner appointed by the king in 1754 by king george. "i appoint you my commissary in the said province and territories -- this is in maryland, hereby granting unto you the said george stewart all fees, profits and advantages to the fence office any ways belonging and a do hereby command all justices of the peace, mayors, shares, keepers -- sheriff's keepers of jails , and of officers and administrators within the province to aid and assist you as a will and to the contrary to
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peril." this commission in other words, explicitly paid for the customs officer also by definition the focus turned folks assisting to the fines, fees and asset seizures that would be collected as part of his job. this the american colonists rejected mightily, as you all know. basically what happened was that was the standard way of funding a set of offices and then after the french indian war, the british government was in significant that and saw the colonies as revenue extraction. and so the self-consciously such as in these cases converted the constitution administrative justice from one that was about justice and securing the peace to being a concept of revenue generation. they passed a series of acts, the navigation act, sugar act, so forth, increase the number of customs officers and the , response of the colonists again, their policy reactions was that the sons of liberty burn the gaspe in providence,
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rhode island, a ship that it interrupted an american ship that was transporting rum. austin was sent to for sale as a customs prize. the sons of liberty burned the gaspe. policy quote number one. [laughter] in annapolis, another instance, a ship called the speedwell was secured by customs officers and all of its goods, not just the illicit goods, all the goods of the shipr put on auction at the maryland coffee house. the be split between the court and the judge personally, and that the response of the americans was to tar and feather the customs officer. we have a deep history about this problem and it's in the text of the declaration declaration of independence. the language of the declaration that complaints about the king sending a swarm of officers to eat out our substance on exactly this treatment of administration
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of justice of the revenue generation source. the 4th amendment of course is focused on this revenue generation problem. the american founders recognized that the legitimacy of a system of justice depends on that its purpose be justice and securing the peace. and sought various ways to try to establish that. over our history we have failed and failed even in 1780 since -- in the 1790's. corrections are failing again now. i just want to conclude by reading a poem by the national poet laureate tracy smith, called "declaration." it is very short. i'm reading it means to indicate that the issues of legitimacy and the connection to the deep history of this country and why we built the rights protected system in first place has not been lost on communities of color who are experiencing this treatment.
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so tracy smith, who is african-american, the poem is basically little exerted bits of the declaration of independence. he has sent hither swarms of officers to harass our people. he has plundered our, ravaged our, destroy the lives of our, taken away our, abolishing our most valuable, and altering fundamentally the forms of our in every stage of these oppressions, these petitions for redress have been answered only by repeated injury. we have reminded them of the circumstances of our emigration and settlement here. taken captive on the high seas to bear. that's all from the declaration of independence. it all pertains to the issues we are talking about today. thank you. >> that will be a little difficult to follow. [laughter]
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>> i was hoping you could tell us about the contemporary political context of monetary sanctions, particularly as the relate to punitive access. >> first, thanks to the hamilton project for the invitation. i am honored to be on this panel, especially secretary rubin has been a voice of justice reform. the secretary of treasury being a voice for justice reform is powerful. i want to make three points. the first, just by way of introduction is to thank professor makowsky for citing the ferguson report. in many ways we are here in memory of michael brown. that report occasioned by his death i think really brought to national consciousness the practice we're talking about here in its extreme version but
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not its uncommon version. the big point i want to make is not going back to the revolution but just remembering where we are in a country in terms of the use of the criminal sanction over the lasted 50 years into an instrument of repression. as the secretary mentioned at the outset, quadrupled the rate of incarceration in the united states and the number of people including my colleague bruce and , i've written about this, national academy report documents how it happened. it was because of an excessive use of the sanction that we've called criminal law to accomplish not crime control because that's not what it was , about, but in essence we order but in essence re-order our society. increasing incarcerates, increased supervision which can increase pretrial detention and
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, you would talk but another manifestation of the same political era of what a number of us are calling punitive access. the use of monetary sanctions as part of this regime of extended use of state power. this is a moment where my inner inter-libertarian comes out. surprise to some of my friends rising what we've done is we've weaponized state power the use of the criminal sanction in ways that are destructive, particularly destructive of our aspirations for racial justice. so that's the first point. we can't talk about this topic, much less reform without recognizing we're in a moment in time to reverse we've built everything over the past figures including this. the second point what to make is that the question of financial penalties which i think there
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bail,ur actually there is fines, fees and forfeiture. that use of the state power to extract money from people who are under state control in some way has to be seen also in the context of poverty. if you look at all of these phenomena through the position of a family has to deal with the financial realities that could not leave these, but let's read matt desmond book, eviction. there are the things going on in the lives of poor families where this is one more thing on top of a strained financial reality. there are economists who have looked at what i think is one of the most damaging consequences of this era of access, which is the diminished ability particularly of african-american families to accumulate and transfer wealth between generations. it is not just these that tend to depress that ability to accumulate wealth but it's also,
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commissary. it is trip to the prisons. it's also the collect calls. at some point you say what have we done in this country to those who are struggling the most? final point. i find it interesting and this is a real contribution to the papers, to look at what we are doing here with all the financial penalties and bail in context of reductions of tax revenue to localities and this notion which sounds so benign of user fees. so if the user fees for all sorts of, we pay extra to fly an airplane so this tsa employs can do the work they do to make sure we are safe. fine with me. i'll pay more to make sure we are safe. user fees as applied to this people under state supervision is think obscene. so the question here is not proposals but it is principles. first why would we ever charge somebody for the privilege of being supervised?
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why would we ever charge people for the appointment of counsel when you are indigent? so the user fee notion which comes from some interesting place and maybe it's part of a reduction, and the tax revenue we charge people to do certain things just seems in this context of the of seeing. bscene. if we look at the criminal justice system as a public good, that should be paid for by the public because the adjudication of wrongdoing and the appropriate response to the wrongdoing is a public value and enhances the respect for the rule of law because that's a public value, and then we create this machinery that puts people in and out of the system, charge them for the system can we do in thing -- we've been something that seems that only unconstitutional but as as a matter of who we are as americans inconsistent with the core of american values. >> thank you. i'd like to turn out to kristin. michael argued revenue motivated
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policing isn't just bad for the people who are the targets of it but it also can undermine public safety. do you think that's right? how have you seen this play out? so, first ever want to thank the hamilton project for shining a spotlight on an issue that i think stands as one of the greatest threats to our democracy today fines and fees , and the resurgence of modern-day debtors prisons. and i think frankly we talk about it a lot but there isn't enough being done to promote reform and end this pernicious practice. i think that jeremy is exactly right, that it is in large part the legacy of michael brown, and what we've all learned about ferguson, missouri, that helps to promote greater public dialogue around this crisis. in ferguson, missouri, this is the place where 20% of government revenue was generated off of fines and fees extracted off the backs of poor people, the majority of whom were black and brown, and simply lack the
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ability to pay. fees tied to offenses like walking, the matter of walking in the roadway, failure to comply citation. these are citations that were issued to about 95% of african-americans in ferguson. municipal violations were having an unmowed lawn, putting up trash in the wrong place at the runtime were also issued overwhelmingly to black k residents. sadly we know that these practices are widespread and pervasive across the country. what's remarkable is about this is there is a clear supreme court precedents that this is unconstitutional, a case which says you can't lock somebody up merely because of their inability to pay. but the problem is we don't have an enforcement mechanism to help breathe life into that supreme court ruling. one of the things that we do the lawyers' committee for civil
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rights under law is we try to hold some of the bad actors accountable. we have been doing a fair amount of this work in places in the deep south like arkansas, oklahoma and louisiana where these practices are particularly deep-seated. just a kind of help bring these issues to life let me share just , a word about a case we brought in sherwood, arkansas. their fines and fees on poor people is just a fact of life. this is a town that had set up a hot check port and made big business out of prosecuting people who were writing small checks to local merchants. the court advertised their service service on the website, and one of our clients kind of really speaks to how problematic the practice is of this court were. one of our clients was a woman who five years prior to our filing of this suit of a small
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-- wrote a small check for about $29, and over the next 5 years of life she paid more than in $600 fines and fees to this court. when we filed she remained indebted by about $2600. she had no job. she had no source of income. she stayed at home to take care of a bedridden mother. there was no way she could ever climb out of that hole. and on top of all that she spent about 25 days in jail because of her inability to pay those fines and fees. white county, arkansas, we brought a suit here as well. one of our clients is a woman, both she and her husband were entangled in the court because of their inability to pay fines and fees tied to nonviolent low-level offenses. they lost their children because they were in jail and are still struggling to get access to the kids back. so these are practices that
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destroy lives and terror -- tear communities apart. we believe at the lawyers committee that litigation is a powerful tool for promoting reform. it helps lay the groundwork that might help create the political will necessary to embrace some of these bold and ambitious reforms that we been hearing about this morning. so we continue to look to the power of the courts to help to hold some of the bad actors accountable, to send a strong message to other judges and courts out there that the practices are violating the constitution, and hopefully hopefully if we send a strong , message to enough courts and judges we can help to institute some of these reforms that might bring about the systemic change that we ultimately need. >> thank you. back to the proposals. i would like to come back to michael and ask, if you want to say a few more words about the details of what you're proposing and some of the advantages it would have?
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i think the principal advantage of first proposal, which is the remittance of direct revenues back to the state to then be distributed per capita is the simplicity of it, that there's not a lot of machinery and there's no explicit cutting of the revenues in a given fiscal year. so if we see an effect from that, if we see a decline in arrests, and the decline of citations, a decline in revenue from that, it is strictly going to be given by that 5%, 10%, 15% of municipalities that are egregiously pursuing it as a fiscal strategy. so for the median local government, this will have no effect and that's what we want. we want a policy that is simple to implement, that is going to -- any outcome effects will be driven by the most aggressive municipalities and the ones that
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really adopted the strategy. as for the more ambitious the, the proposal to establish public safety rebate, i think -- i want to take a step back and just a note that i don't think this is what most officers signed up for when it went to the academy. they didn't foresee themselves becoming an agent of a tax system. they didn't see themselves as tools to expropriate wealth from the committee. and furthermore, most of the officers don't work there beat -- their beat with a partner. if anyone is going to have the back, it's going to be the community they serve, but there's no way they're going to get that community buy-in and support and partnership if they are a walking financial catastrophe. if they are a threat with so many dimensions. so at the margins i think this is not just harming families and harming households.
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it's putting the officers themselves in greater danger. at the very least, impairing their ability to execute their duty. if you want to get into the nitty-gritty, there's additional small policies, ending federal equitable sharing programs to remove the incentive for seizures and participating in drug arrests that can lead to greater seize property revenues. but i think the most important thing to establish in this conversation is the goal to dilute this incentive and to reestablish trust between officers and the community that public safety is, in fact, their principal goal. >> thank you. beth, i'd like to ask you the same question, you could say more about what exactly you're proposing and how you see it working. >> absolutely. as i mentioned in my initial remarks, it's very important that objective information be
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used and ability to pay calculation. one of the things you want to think about in engaging in institution designed at the front it is what constitutes income, and how broad is that. because one of the issues that is really important to understand in this context is family members are often people who are paying and that's particularly true. there was a study in alabama that showed this was particularly true for middle-aged african-american women. so people who are not themselves debtors but are paying the debt for someone else. so one of the things that you , would do in this type of calculation is determined what income is, if the person has a job, then assess whether actual -- whether actual if not take-home pay is. it's on public benefits, that could be used as a source of income. if you're applying applying this to wealthier individuals you might think of other things like real estate income and the like. but focusing on folks are unlikely to have that, you
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have to think about what are the parameters of whose income are we going to include and the pressure with respect to family income is that on the one hand, if the person has access to that money, it seems illegitimate not to include it within what they're paying. on the other hand, we have a real and serious concern that people who did not engage in an offense are being effectively punished for it. we can look at models. they were a series of experiments and the united states in the late '80's and early '90's that included some aspects of family income, consumer bankruptcy, federal student financial aid. the are a number of models will -- we might look at to try to establish very clear parameters of what does and doesn't count. what i recommend in the paper is that family income be limited to income to which a person has a legal or equitable right and not beyond that. we have to match that on the deduction site. anyone whose income included
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should be included in the cost of living deductions, as well as anyone who is dependent on those people. but not go any further than that on either side to ensure we have a clear cabined determination of what income includes. on the deduction site it simple to think about things like daily cost of living. that may be different in different jurisdictions or even different cities within the same jurisdiction. but there are again looking at these models from the late 1980's, there are ways that you can set very standardized amounts so the actual application of the system is a -- isn't labor-intensive administratively. then you need to make sure there some wiggle room. so someone comes in the system who for instance has very serious medical needs, you want to make sure if we think about what their income is, that it is captured. once you've determined what a persons ability to pay is, the
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next big question is how do you actually use that to graduate the economic sanctions? there are really three different models i talk about in the paper. one is something that's been adopted recently in san francisco with respect to traffic tickets which is to say if you are able to pay x amount, and you get the normal traffic ticket amount. if not, if you're below that threshold we will knock 80% off the ticket. that's sort of a sharp line below, if you fall below to get some relief. one of the concerns but that is if you're slightly above that line, you don't get the relief and there will be some people were slightly below that line the might be less relief from -- might need less relief from that. so that's the system that could only be really useful at the very lowest end of the amounts of economic sanctions were talking about. another approach is to use a sliding scale which gives you more granularity. then finally the third approach i talked about in the paper is day fines
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so just to explain what that is, you would take the adjusted daily income of the person and -- multiply it by a penalty unit. the result of which would be the fine imposed. the penalty is established by the seriousness of the offense. so jaywalking ip have the penalty unit burglary might be , 100. you do it establish without ability to pay. they are entirely dictated by the seriousness of the offense . that multiplication then result the amount. if my daily income is ten dollars a day, my fine would be ten dollars. my daily income can was $100 a day, it would be $100. that's a model we've had some experimentation with within the united states. it's used as i mentioned earlier several european and latin american countries and we do have some data that what that would look like. >> great. take a step back and ask kind of what i think is a core question. we teach undergraduates in the
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economics of crime that incarceration involves a whole host of costs and that fines can actually be an alternative to those that are preferable in some instance because you can deter crime, punishment but you are in principle allowing people to continue to work and you're not paying the cost of an -- the cost of incarcerating them. i wonder when that goes wrong, or that sort of econ 101 takers off the rails. something the professor touched on. the effects of enormous fines, which is if the fine and the time in which you have to remit payment is such that your standard occupation is just not going to cover it, you have a lot of people in a situation where property crime, where, i mean, just boosting becomes your best option other than maybe taking out a payday loan. you have two terrible choices. incredible interest
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rate that you will probably default on, or the riskier option that can be some sort of flow probability of getting caught, quick payoff criminal activity. so now you are actually driving people who didn't previously have a criminal records into criminal activity because it is the best option in a terrible situation. >> i think we have to make some distinctions. set aside forfeiture, we haven't yet referenced the supreme court decision, very important, lots of interesting litigation opportunities so keeping your folks busy. forfeiture is ill-gotten gains, instrumentalities of crimes different rationale. , let's be clear about the distinction between finds in -- fines and fees in terms of the public purpose. so fines are intended in our jurisprudence to have a sentient purpose. they are intended to be a type
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of punishment. they should be and constitutionally required. even within that there are alternatives to that mechanism of sanctions and day fines is one. we are funding a lot of this. is a very exciting time. we have been at it for about five years. experimentation is one of the things we should be doing right now. day fines is one. i have little hope we should think of fines as an alternative to incarceration realities. i'm doing that, if we look to fines as a way of undoing mass incarceration, it will be a long time before we get there. i some cases judges would say would not hold up that help. fees, however, are an entirely
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different beast. this user fee idea. to be a not intended criminal justice purpose given they are revenue-generating. some courts are starting to -- it is not just the lease -- police, it is judges, private probation companies. the economics built into the fee structure, the revenue goes to the same government that we should think about public services. good shouldpublic not be on the backs of people involved in criminal justice. it should be on the taxpayers. that is where we come into conflict with this no new taxes mantra. >> it's an extension of what jeremy said, the criminal justice system is public good it needs to be funded through
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taxes, reasonable taxes and the question is what are the principles that guide the structure? that is where we have a different take on how you move the needle on mass incarceration. we have to rebuild the capacity for the country to see the purpose of sanctions to make everybody whole and communities whole and health and well-being of the set at the extension of the peace and security construct issue is anfines important adjustment. we do need to bring down the frequency in which we use incarceration. far reduced degree of incarceration, they deliver all important parts of reorienting the system toward the general peace and security for all contests.
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-- concept her. >> it is important when talking about determined, on meaningful choice about whether or not to operate in the confines of the law. but there are a number of things we charge economic sanctions for where there is no such meaningful choice. when we charge a person that is unsheltered for sleeping in a public space, they don't have a meaningful choice to operate within the confines of the law. we are still adding to their fees that willd never be paid. we are talking about incarceration because that person will end up in jail because we put them in the system. we have to talk about why is , that a crime? why is it that has been criminalized? that is a key part of the conversation we have to have. >> money bring up the power of litigation.
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we sued 13 judges in the city of new orleans, a class-action on behalf of poor people overwhelmingly african americans who were incarcerated. judges failed to consider their ability to pay. one of the powerful things in the decision we got from the court last year was the recognition of the unconstitutional conflict of interest. we have judges imposing these fines and fees and it underscores how we can't look to courts and judges to self police and impose reforms that ultimately will be necessary to turn the system on its head and make it back into the form with the constitution. >> let me tack on one thing. i see so much of the fee structure of the criminal justice system right now. it is a fools gold ambition of a free lunch that we can have a
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criminal justice public good for free because criminals will pay for it. that is the implied message. if there is one thing we know in economics is it can't be had. if you want every true public good provided, you will have to pay for it. >> that makes sense here we are getting a lot of great audience questions and i want to turn to those. and ask you to think about the way we have privatized the criminal justice systems. there are a number of different angles but with the toss that out generally. >> to come back to arkansas, craig said county, arkansas, judges are elected. there are two judges who ran for election on a platform of reform. was to improve some of the things that was broken in this community.
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they won. they terminated a contract with a private probation company called justice networks. and extractedted hundreds of thousands of dollars off the backs of the poor people in this community for years. they decided they would put in place a better system. they would think about people's ability to pay. people have been locked up because of their inability to pay this predatory private probation company that would knock on people's door and cooperated with police. they threatened arrested every turn. remarkably that private company sued the judges. it is a case moving forward now. we have weighed in and offered up an amicus brief in support for the judges but it underscores the dangers of
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privatizing aspects of the criminal justice system in the sense of entitlement that so many of these predatory companies have. it is important for the public to be vigilant when we hear discussions about cities, counties, government in general, entering into contracts with private companies. emblematic ofis so many of the problems that riddle communities across the country that privatize. often look at private prisons as the devil incarnate. and sometimes they do terrible things, but we should not let that question distract from the fact that we have elected people through our democracy who were doing what we are talking about. judges, da's are complicit,
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certainly financial offices, so i want to keep the focus on this is us here at we created this system. what i find encouraging in addition to the litigation victories which are spectacular is that counties, words of supervisors -- san francisco created a financial task force and they decided by ordinance to stop doing it. stop imposing fees on juveniles. what's happening in the justice andrm movement roots up they should grab onto this issue and just like the aggressive prosecutors being elected, there should be progressive mayors and others that should say stop doing it. that is a different proposal from the ones we are hearing from our academic colleagues but that has to be the way to think about it and stops feeding the private beast.
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>> i think of these things as two sides of the same coin. it comes to power and discretion being traded and in one case it is being put in the private marketplace and being exchanged and turned a profit. in another place in the political market place the power and discussion is traded for revenue and votes and political support. and both are terrible outcomes, but the seed underneath both of them is the power and discretion in the criminal justice system that can then be exchanged. so much, we have an obligation to try to mitigate that discretion and how it can be employed. >> unfortunately we don't have much time left. there's lots to talk about. what i would like to conclude with is a question to everyone, tell me briefly, what are you either most optimistic about
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being able to fix fairly soon or a different take, what should we be pushing on? what is the think we have not discussed until now but should be getting more emphasis? >> i will repeat what i said before. i think the day fines model of the sanctioning part of this is an important one to move forward. it has been used extensively in europe. germany and the netherlands are two cases that will be held up, the use of incarceration-- so in the u.s. incarceration makes up 80% of sanctions. in germany that is 6%. in the netherlands it is 7% or 8%. a lot has to be decriminalized to get there. that is a part of it but you have to have a much broader set of alternatives to oakhurst duration -- to incarceration and that is a critical part of that. i would echo jeremy and say just putting a end to this part of this. fees part of
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rebuilding the concept of the administration of justice for the public good. >> i will say briefly the attention being paid to criminal justice reform is long overdue, is electrifying. this issue has not been given sufficient attention. it is immobilizing to the point of focus for those doing the hard work at ground level. to, where are the journalists? follow the money. we are the folks, conflict of interest litigation is so important, there is inherent conflict in paying for the operations out of the target fees of people who were under supervision. that is egregious than the private case. there is an exposure opportunity here that we are just starting to see emerge. referenced,r one i
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these localities cook county or alameda countyr taking hold of it and this is , about us. we can stop it. >> the bipartisan support for criminal justice reform is indeed inciting and we should be helpful. the resurgence of debtor's prisons -- jeremy is exactly right. it is not getting the attention it should. it is a problem that is impacting overwhelmingly african-americans, latino, low income communities, destroying communities, pulling families apart, and tangling people unnecessarily in the criminal justice system who pose no threat to public safety. at the end of the day we are talking often about offenses that don't even rise to the level of being a crime and waste taxpayer dollars. i think ultimately endanger
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communities because we are not focusing on the real threats and issues that beleaguered communities. we issued a report that looks at these problems in and arkansas, a real systematic way. it speaks to a problem that is pervasive across the country and i'm hopeful if we can to find a bipartisan coalition necessary to achieve reform across our country. thanks so much to all of our panelists. [applause] we will have a brief break. see you here for the second panel. >> we had a fantastic first panel. it set up this conversation well to continue essentially what was discussed. i will not -- following the jeremy travis, because you know, new york is in the house. i really wanted to appreciate the conversation about


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